Page:Federal Reporter, 1st Series, Volume 9.djvu/616

SAWYER V. KELLOGG. 601 �to recover its value by suit against the persons making the fake and fraudaient entry. They chose the former proceeding; but, in the mean time, the owners of the steamer, without knowledge of any offence, committed or premeditated, earned the freight which was agreed to be paid for its transportation, and ought not now to be refused its payment from the proceeds of the sale of the forfeited property. �Let an order be entered directing the clerk to pay to the petitionera the Bum of $1,305.61 out of the proceeds in the registry. ���Sawteb V. Kellogg. {Gireuit Court, D. New Jersey. November 19, 1881.) �1. TRADE-MaBKS— AcCOtTNTING. �K., who was engagea largely in the business of packing blues, on his own account and for others in the trade, put up the blues covered by the infringing trade-mark for the flrm of B. & Co., who sold them, paying K. for the work and labor of packing them. K. was adjudged an infringer, an injunction issued against him, and the decree directed an accounting. On motion to Btrike from the decree the clauses directing an accounting, hdd, that the com- plainant was entitled to an accounting to enable him to ascertain what profits were made by K. by his work and labor, and what damages resulted there- from. �2. COSTB. �In trade-mark cases the ordinary rule is that a decree for an infringement and an injunction carries costs ; and this rule applies, though no demand was made before suit that the defendant should cease to use the infringing trade- mark. �On Motion to Amend Decree. �George Putnam Smith, for the motion. �Rowland Cox, contra. �Nixon, D. J, This is a motion to strike from the decree entered in the above case the clauses which direct an accounting and the payment of costs. �1. As to the accounting. The counsel for the defendant resta his application to strike out on two grounds : First, because the proof s show that the defendant is not the person liable to account to the complainant. The evidence is that the defendant was largely en- gaged in packing blues on his own account and for others in the trade ; that all the blues covered by the infringing trade-mark were put up by him for the firm of James S. Barron & Co., dealers in wooden ware, rope, and cordage in New York, who placed the same upon the market ; that he made no sales to any one of the articles thus packed, ��� �